DOCSLIB.ORG

Elena Kagan and the 'Hollow Charade'

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Elena Kagan and the 'Hollow Charade' Elena Kagan and the 'Hollow Charade' The Wall Street Journal May 11, 2010 Tuesday Copyright 2010 Factiva ®, from Dow Jones All Rights Reserved Copyright © 2010, Dow Jones & Company, Inc.) Section: Pg. A21 Length: 820 words Byline: By Neomi Rao Body Yesterday President Obama nominated Elena Kagan to fill the fourth Supreme Court vacancy in less than six years. This nomination presents an opportunity for a teaching moment about what the court does, how it affects the lives of ordinary citizens, and how individual justices make a difference in this enterprise. It would certainly be a departure from the unsatisfying confirmation hearings Americans have recently observed. Senators ask important but highly predictable questions, and the nominee is coached to choose from certain stock answers. As we saw in last year's hearings for Justice Sonia Sotomayor, a nominee must repeatedly allege fidelity to the law. But somehow, despite days of testimony, the process fails to capture what a nominee actually means when he or she describes faithfulness to the law. Each nominee will have a different conception of fidelity. Anyone paying attention knows that the two most recent appointees to the high court -- Justice Samuel Alito and Ms. Sotomayor -- will disagree on most of the Court's difficult 5-4 decisions. Yet their confirmation hearings displayed little evidence of their philosophical differences. Sticking to the script means that nominees are confirmed based on platitudes, and public discourse suffers as a result. One can only hope that Ms. Kagan will go off-script. In a 1995 book review published in the University of Chicago Law Review, she lamented that recent confirmation hearings were nothing but "a vapid and hollow charade." She explained that the Senate should view confirmation hearings "as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct." Ms. Kagan is right. I think Americans can understand that judges draw on a variety of tools in interpreting the law, and that these tools differ for judges based on their constitutional values. For example, when a statute is unclear, Justice Antonin Scalia might press harder on the language of the law, look at the context of specific words, and generally seek to understand what the written law means. He seeks to limit his own discretion, in part because the Constitution gives Congress, not the courts, the power to enact laws. Page 2 of 2 Elena Kagan and the 'Hollow Charade' By contrast, Justice Stephen Breyer might focus on the purposes of the law and look to sources outside of the Constitution -- including foreign law -- to come to a decision. He may consider the outcome that makes the most sense to him because he considers judges to be a part of the democratic process. These are fundamentally different ways of dealing with difficult cases and they reflect two distinct attitudes about the proper role of a judge. If President Obama wants to pick judges that are more like Justice Breyer and less like Justice Scalia, that's his prerogative. Elections have consequences for the appointment of judges, just as they do for public policy. But it would elevate the debate substantially if Ms. Kagan, former dean of Harvard Law School, could explain her views of the judicial process. Right now we know little about those views since Ms. Kagan has never been a judge and has not written on the topic. If President Obama is true to his campaign promises, his nominee will differ substantially from his predecessor's nominees. Will Ms. Kagan articulate this difference in her hearings? Ms. Kagan and those preparing her face a simple, political problem: "progressive" views of judging are difficult to defend. It may be why no recent nominee has tried. The simple statement that "judges should interpret the law, and not make it" resonates with Americans in a way that "judges should figure out the best answer" does not. The reality may be more complicated than either of these formulas, but an attitude that emphasizes the rule of law has more appeal not merely because of its simplicity but because it captures the idea that judges are not policy makers. It emphasizes that judges should interpret the language of the law and try, as best they can, not to impose their own personal views of justice or the good when deciding cases. After Justice Sotomayor's hearings, some prominent liberals were disappointed that a "sophisticated" understanding of the law as open-ended, and of judging as personal -- widely accepted in the legal academy -- was not defended publicly by the nominee before a solidly Democratic Senate. Perhaps this indicates that conservatives have won the debate over the type of judges Americans want. But it is a Pyrrhic victory if nominees with very different philosophies are confirmed based on incantations of the right formulas without an examination of their actual beliefs. --- Ms. Rao, an assistant professor at George Mason School of Law, was previously associate White House counsel to President George W. Bush and counsel to the U.S. Senate Committee on the Judiciary. License this article from Dow Jones Reprint Service Notes PUBLISHER: Dow Jones & Company, Inc. Load-Date: December 17, 2010 End of Document.
Load more

Recommended publications
  • The Roles of Sonia Sotomayor in Criminal Justice Cases * Christopher E
    THE ROLES OF SONIA SOTOMAYOR IN CRIMINAL JUSTICE CASES * CHRISTOPHER E. SMITH AND KSENIA PETLAKH I. INTRODUCTION The unexpected death of Justice Antonin Scalia in February 20161 reminded Americans about the uncertain consequences of changes in the composition of the Supreme Court of the United States.2 It also serves as a reminder that this is an appropriate moment to assess aspects of the last major period of change for the Supreme Court when President Obama appointed, in quick succession, Justices Sonia Sotomayor in 20093 and Elena Kagan in 2010.4 Although it can be difficult to assess new justices’ decision-making trends soon after their arrival at the high court,5 they may begin to define themselves and their impact after only a few years.6 Copyright © 2017, Christopher Smith and Ksenia Petlakh. * Christopher E. Smith is a Professor of Criminal Justice, Michigan State University. A.B., Harvard University, 1980; M.Sc., University of Bristol (U.K.); J.D., University of Tennessee, 1984; Ph.D., University of Connecticut, 1988. Ksenia Petlakh is a Doctoral student in Criminal Justice, Michigan State University. B.A., University of Michigan- Dearborn, 2012. 1 Adam Liptak, Antonin Scalia, Justice on the Supreme Court, Dies at 79, N.Y. TIMES (Feb. 13, 2016), http://www.nytimes.com/2016/02/14/us/antonin-scalia-death.html [https:// perma.cc/77BQ-TFEQ]. 2 Adam Liptak, Supreme Court Appointment Could Reshape American Life, N.Y. TIMES (Feb. 18, 2016), http://www.nytimes.com/2016/02/19/us/politics/scalias-death-offers-best- chance-in-a-generation-to-reshape-supreme-court.html [http://perma.cc/F9QB-4UC5]; see also Edward Felsenthal, How the Court Can Reset After Scalia, TIME (Feb.
    [Show full text]
  • The Supreme Court of the United States
    The Supreme Court of the United States Hearings and Reports on the Successful and Unsuccessful Nominations Now Includes the Kavanaugh and Preliminary Barrett Volumes! This online set contains all existing Senate documents for 1916 to date, as a result of the hearings and subsequent hearings on Supreme Court nominations� Included in the volumes are hearings never before made public! The series began with three volumes devoted to the controversial confirmation of Louis Brandeis, the first nominee subject to public hearings. The most recent complete volumes cover Justice Kavanaugh. After two years, the Judiciary Committee had finally released Kavanaugh’s nomination hearings, so we’ve been able to complete the online volumes� The material generated by Kavanaugh’s nomination was so voluminous that it takes up 8 volumes� The definitive documentary history of the nominations and confirmation process, this ongoing series covers both successful and unsuccessful nominations� As a measure of its importance, it is now consulted by staff of the Senate Judiciary Committee as nominees are considered� Check your holdings and complete your print set! Volume 27 (1 volume) 2021 Amy Coney Barrett �����������������������������������������������������������������������������������������Online Only Volume 26 (8 volumes) - 2021 Brett Kavanaugh ���������������������������������������������������������������������������������������������Online Only Volume 25 (2 books) - 2018 Neil M� Gorsuch ����������������������������������������������������������������������������������������������������$380�00
    [Show full text]
  • Supreme Court Justice Stephen Breyer to Give UM Lecture
    University of Montana ScholarWorks at University of Montana University of Montana News Releases, 1928, 1956-present University Relations 8-26-2002 Supreme Court justice Stephen Breyer to give UM lecture University of Montana--Missoula. Office of University Relations Follow this and additional works at: https://scholarworks.umt.edu/newsreleases Let us know how access to this document benefits ou.y Recommended Citation University of Montana--Missoula. Office of University Relations, "Supreme Court justice Stephen Breyer to give UM lecture" (2002). University of Montana News Releases, 1928, 1956-present. 18010. https://scholarworks.umt.edu/newsreleases/18010 This News Article is brought to you for free and open access by the University Relations at ScholarWorks at University of Montana. It has been accepted for inclusion in University of Montana News Releases, 1928, 1956-present by an authorized administrator of ScholarWorks at University of Montana. For more information, please contact [email protected]. The University of Montana UNIVERSITY RELATIONS • MISSOULA, MT 59812 • 406-243-2522 • FAX: 406-243-4520 Aug. 26, 2002 Contact: Shelley Hopkins, director of external relations, School of Law, (406) 243-4319. SUPREME COURT JUSTICE STEPHEN BREYER TO GIVE UM LECTURE MISSOULA-- The University of Montana School of Law will host its third member of the U.S. Supreme Court when Associate Justice Stephen G. Breyer speaks at the William B. Jones and Judge Edward A. Tamm Judicial Lecture Series. Breyer, the Supreme Court’s 108th justice, will give the sixth installment in the Jones- Tamm Lecture Series at 3 p.m. Wednesday, Sept. 11, in the University Theatre.
    [Show full text]
  • The Death of Justice Ruth Bader Ginsburg: Initial Considerations for Congress
    Legal Sidebari The Death of Justice Ruth Bader Ginsburg: Initial Considerations for Congress September 21, 2020 On September 18, 2020, Justice Ruth Bader Ginsburg, the second woman to serve on the Supreme Court of the United States, passed away at the age of eighty-seven, vacating a seat on the High Court that she had held for twenty-seven years. Nominated to replace Justice Byron White in 1993, Justice Ginsburg already had a trailblazing career as a law school professor; Supreme Court litigator; co-founder of the American Civil Liberties Union’s Women’s Rights Project; and judge on the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) for thirteen years. Several of her opinions have been consequential, including her 1996 majority opinion in United States v. Virginia, holding that women could not be denied admission to the Virginia Military Institute on the basis of their sex. Justice Brett Kavanaugh said in a recent statement that “no American has ever done more than Justice Ginsburg to ensure equal justice under law for women.” Justice Ginsburg was also noted for her pointed dissents, including in Shelby County v. Holder (2013), where the Court struck down a key provision of the Voting Rights Act of 1965, and in Ledbetter v. Goodyear Tire & Rubber Co. (2007), where the Court rejected a Title VII employment discrimination claim. In more recent years, Justice Ginsburg gained recognition in popular culture, becoming known by the moniker “the notorious RBG.” She was the subject of books, movies, and an opera, and in 2015, was named one of Time magazine’s one hundred most influential people.
    [Show full text]
  • Elena Kagan Can't Say That: the Sorry State of Public Discourse Regarding Constitutional Interpretation
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Washington University St. Louis: Open Scholarship Washington University Law Review Volume 88 Issue 2 2010 Elena Kagan Can't Say That: The Sorry State of Public Discourse Regarding Constitutional Interpretation Neil J. Kinkopf Georgia State University College of Law Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Constitutional Law Commons, and the Judges Commons Recommended Citation Neil J. Kinkopf, Elena Kagan Can't Say That: The Sorry State of Public Discourse Regarding Constitutional Interpretation, 88 WASH. U. L. REV. 543 (2010). Available at: https://openscholarship.wustl.edu/law_lawreview/vol88/iss2/7 This Commentary is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. ELENA KAGAN CAN’T SAY THAT: THE SORRY STATE OF PUBLIC DISCOURSE REGARDING CONSTITUTIONAL INTERPRETATION NEIL J. KINKOPF MEMORANDUM FOR THE PRESIDENT OF THE UNITED STATES From: Ray L. Politik, Counsel to the President Re: Proposed Statement of Elena Kagan to the U.S. Senate, Committee on the Judiciary, on her nomination to be an Associate Justice of the Supreme Court of the United States Date: June 2010 _______________________________________________________ I have reviewed the draft statement that Elena Kagan has proposed submitting to the Senate Judiciary Committee.1 In this statement, Dean Kagan seeks to educate the Judiciary Committee and the American people to think differently about the enterprise of constitutional interpretation.
    [Show full text]
  • Kagan-Issues Privilege-June-301.Pdf
    SUPREME COURT OF THE UNITED STATES BLOG SCOTUSBLOG SCOTUSblog Briefing Paper Elena Kagan – Privilege and Release of Kagan Documents June 30, 2010 I. Summary and Our Take Shortly after Elena Kagan was nominated on May 10, 2010, the Senate Judiciary Committee set June 28, 2010 as the first day of an estimated four days of confirmation hearings. This meant that there were forty-nine days between the nomination and start of the hearings (as compared to forty-eight for Sonia Sotomayor last summer). The Committee almost immediately began the process of requesting documents related to Kagan’s service in both the Clinton and Obama Administrations. Senators, the Republicans in particular, hoped that these documents might shed new light on her judicial philosophy in a way that her relatively sparse written record had not. Under the Presidential Records Act (PRA) and Executive Order 13489b, all documents requested by the Judiciary Committee must be searched for, pulled, and read by archivists, who vet each page for possible legal restrictions. Then, representatives for both Presidents Clinton and Obama have the right to read and review documents related to their respective administrations and get the final say on which documents (or pages of documents) are released or withheld. Additionally, as the incumbent administration, Obama’s representatives have the right to review the documents of its own administration as well as those from the Clinton administration (Clinton representatives are not permitted to review documents from the Obama administration). When Kagan was nominated, it was unclear what documents, if any, the Obama or Clinton Administrations might choose to withhold, or whether there was a potential bombshell within these documents that might put the nomination in jeopardy.
    [Show full text]
  • The Supreme Court and Its Shrinking Docket: the Ghost of William Howard Taft
    University of Minnesota Law School Scholarship Repository Minnesota Law Review 2006 The uprS eme Court and Its Shrinking Docket: The Ghost of William Howard Taft Kenneth W. Starr Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Starr, Kenneth W., "The uS preme Court and Its Shrinking Docket: The Ghost of William Howard Taft" (2006). Minnesota Law Review. 32. https://scholarship.law.umn.edu/mlr/32 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. STARR_3FMT 05/17/2006 09:15:32 AM Essay The Supreme Court and Its Shrinking Docket: The Ghost of William Howard Taft Kenneth W. Starr† William Howard Taft genially served as the tenth Chief Justice of the United States.1 His career was of breathtaking variety. Younger even than current Solicitor General Paul Clement, the buoyant Solicitor General Taft delivered “speech” after “speech” in the Supreme Court in the late nineteenth cen- tury. Little did he suspect, one might safely surmise, that one day—after an intervening tour of duty as President of the United States—he would occupy the center chair itself and lis- ten to his successors (many times removed) delivering their “speeches” to the Court in the old English style. In those hal- cyon, or at least less hurried, days, lawyers were allowed abun- dant time to present their case, educate the Justices, and per- haps even persuade the Court by the force of oral advocacy.2 Those were also the days when the Court was duty-bound to decide the lion’s share of the cases that came before it.3 The † Dean, Pepperdine University School of Law.
    [Show full text]
  • Ruth Bader Ginsburg, Supreme Court's Feminist Icon, Is Dead at 87
    Ruth Bader Ginsburg, Supreme Court’s Feminist Icon, Is Dead at 87 By Linda Greenhouse The New York Times Sept. 18, 2020 Ruth Bader Ginsburg, the second woman to serve on the Supreme Court and a pioneering advocate ​ for women’s rights, who in her ninth decade became a much younger generation’s unlikely cultural icon, died on Friday at her home in Washington. She was 87. The cause was complications of metastatic pancreatic cancer, the Supreme Court said. By the time two small tumors were found in one of her lungs in December 2018, during a follow-up scan for broken ribs suffered in a recent fall, Justice Ginsburg had beaten colon cancer in 1999 and early-stage pancreatic cancer 10 years later. She received a coronary stent to clear a blocked artery in 2014. Barely five feet tall and weighing 100 pounds, Justice Ginsburg drew comments for years on her fragile appearance. But she was tough, working out regularly with a trainer, who published a book about his famous client’s challenging exercise regime. As Justice Ginsburg passed her 80th birthday and 20th anniversary on the Supreme Court bench during President Barack Obama’s second term, she shrugged off a chorus of calls for her to retire in order to give a Democratic president the chance to name her replacement. She planned to stay “as long as I can do the job full steam,” she would say, sometimes adding, “There will be a president after this one, and I’m hopeful that that president will be a fine president.” When Justice Sandra Day O’Connor retired in January 2006, Justice Ginsburg was for a time the only woman on the Supreme Court — hardly a testament to the revolution in the legal status of women that she had helped bring about in her career as a litigator and strategist.
    [Show full text]
  • 15 It Is Interesting to Note That the First Circuit Has Been Admired for Its
    15 It is interesting to note that the first circuit has been admired for its amazing scarcity of dissents, due in no small part to Judge Breyer's ability to encourage people to empathize with each other and to teach people with disparate views to find new ways to agree. I am confident that it is this ability that has gained him the back- ing of liberals and conservatives alike, not because he is a centrist or a moderate, which may prove to be inaccurate, but because he has an enormous intellectual honesty and because he is fair. Colleagues, litigants, students, and clerks uniformly agree that Judge Breyer never wraps his ego into an issue, he never elevates politics over principle, and he has earned his reputation as a skilled jurist by being openminded and sensitive to detail. So I am confident, Mr. Chairman, that the committee will overwhelmingly agree, and I could not more strongly recommend Judge Stephen Breyer for your confirmation. The CHAIRMAN. Thank you very much. Now we will hear from a distinguished member of this commit- tee, Senator Feinstein. OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA Senator FEINSTEIN. Thank you very much, Mr. Chairman and members of the committee. As one of the newer members on this committee, it, indeed, has been a great, I think, and unique experi- ence to sit on my first confirmation to be an Associate Justice of the Supreme Court, Ruth Bader Ginsburg, and now to go through these hearings for Judge Stephen Breyer.
    [Show full text]
  • Elena Kagan, in Her Own Words, May 11, 2010
    Elena Kagan, In Her Own Words, May 11, 2010 ELENA KAGAN: President Obama called me last night and he said that I was going to be his nominee, and I didn't even know what to say. I was so overjoyed and overwhelmed, mostly. I'm not sure, actually, the joy has set in quite yet, but it's an extraordinary honor. I grew up in New York City on the west side. I went to public school there. My mother was an elementary school teacher. My father was a lawyer. He was a community leader there trying to make the community better for the lives of the people who lived there. I went to law school at Harvard, and that was the place that I ultimately came back to and became Dean of Harvard. You know, all through college, certainly I thought that law was a possibility. I thought, you know, law would be something that was both very, a very interesting thing to think about, but also that it mattered in the world. I found two ways to make a difference. One is teaching, trying to instill my level of the law and my sense of why law matters in the world and how law can make a difference in the lives of ordinary people. And then public service has been an opportunity to take my legal skills and to take my legal training and work on some of the really important public policy issues of our time, and I did that both in the White House during the administration of President Clinton and in the Justice Department as Solicitor General in this administration.
    [Show full text]
  • Judge Brett M. Kavanaugh: His Jurisprudence and Potential Impact on the Supreme Court
    Judge Brett M. Kavanaugh: His Jurisprudence and Potential Impact on the Supreme Court Andrew Nolan, Coordinator Section Research Manager Caitlain Devereaux Lewis, Coordinator Legislative Attorney August 21, 2018 Congressional Research Service 7-5700 www.crs.gov R45293 SUMMARY R45293 Judge Brett M. Kavanaugh: His Jurisprudence August 21, 2018 and Potential Impact on the Supreme Court Andrew Nolan, On July 9, 2018, President Donald J. Trump announced the nomination of Judge Brett M. Coordinator Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) to fill Section Research Manager retiring Justice Anthony M. Kennedy’s seat on the Supreme Court of the United States. [email protected] Nominated to the D.C. Circuit by President George W. Bush, Judge Kavanaugh has served on Caitlain Devereaux Lewis, that court for more than twelve years. In his role as a Circuit Judge, the nominee has authored Coordinator roughly three hundred opinions (including majority opinions, concurrences, and dissents) and Legislative Attorney adjudicated numerous high-profile cases concerning, among other things, the status of wartime [email protected] detainees held by the United States at Guantanamo Bay, Cuba; the constitutionality of the current structure of the Consumer Financial Protection Bureau; the validity of rules issued by the For a copy of the full report, Environmental Protection Agency under the Clean Air Act; and the legality of the Federal please call 7-5700 or visit Communications Commission’s net neutrality rule. Since joining the D.C. Circuit, Judge www.crs.gov. Kavanaugh has also taught courses on the separation of powers, national security law, and constitutional interpretation at Harvard Law School, Yale Law School, and the Georgetown University Law Center.
    [Show full text]
  • The Court in the World Justice Stephen Breyer16
    The Court in the World Justice Stephen Breyer16 et me start by saying that I am not an expert on international law, and I Lam not an expert on the law of other countries. But I have spent a certain amount of time working as a judge in our courts, and I will speak from my point of view as a justice on our Supreme Court. I want to explain to people how the work has changed in what some call—it is not a very happy word, but it is all right—transnational law, meaning law of other countries, inter- national law; why that has become part of my life; and how. Why look to the world? When we first went off to see courts in Europe, which our court does from time to time—we hear other people and we talk to them—I came back and I thought it was pretty interesting. I was speaking at a university and I said that we had learned a lot of useful things. A professor from Finland asked me to name one thing. I thought for a minute or two and I did come up with something. Well, that would not be so hard to answer today. The number of cases requiring us to take foreign considerations into account has increased substantially. In this piece, I want to tell you what it is like to weigh these foreign considerations and identify a few of the questions that we as justices must answer. Part of my motive for doing this is that there is a tremendous political issue, one that was best illustrated when, a few years ago, I sat on a panel with a Republican congressman from Virginia.
    [Show full text]